Another Legal View of the Dissent Channel Cable on Syria

Since Vietnam, East Pakistan, and the Balkans, it has been a time-honored tradition that State Department officials who disagree with official policy may challenge it through the “Dissent Channel.” In the case of the recent, much-publicized dissent channel cable signed by 51 US diplomats, long-simmering frustration within the Department is expressed in a short, thoughtful policy cable, urging action more forceful than the status quo, to create greater leverage for diplomacy in Syria.

In a recent, puzzling post, Marty Lederman and Ashley Deeks essentially chide these principled diplomats for not having consulted the State Department Legal Adviser’s Office to get the view that their dissenting policy position would be unlawful. The obvious response is: Since when was that their job, and in any event, since when is the dissenting proposal per se unlawful?

The diplomats were simply expressing their view that the current Syria policy is not working, and they were proposing another (in their view) better way. Significantly, The New York Timesspeculates that Secretary of State John Kerry, far from contesting that view, apparently agrees with some or all of it. The United States famously led NATO in an historic act of humanitarian intervention in Kosovo nearly 20 years ago, based in good measure on similar principled internal protest within the State Department. At the time, a number of the participating nations, most prominently the United Kingdom, expressed the view that that operation was lawful under international law. In addition, a number of other nations have since defended NATO’s conduct before the International Court of Justice on the ground that the action was internationally lawful. Given this, why weren’t the US diplomats entitled to recall that particular piece of history and conclude that something similar should be tried here?

Lederman and Deeks suggest that what the diplomats propose would be unlawful under US and domestic law. But their post hardly tells the whole story. Ashley cites to her recent article in Houston Law Review responding to my Frankel Lecture, “The War Powers and Humanitarian Intervention,” but does not review the larger debate there, which lays out in detail why humanitarian intervention in Syria could be lawful under both domestic and international law. Nor does their review adequately capture the legal position apparently taken by the Obama administration in the fall of 2013, expressed to The New York Times by the then-White House Counsel, which states — presumably based on some as-yet undisclosed internal administration legal analysis — that a US military response to the Syrian use of chemical weapons would not be unlawful. As my Frankel Lecture reviewed:

The [White House] Counsel explained that, while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited. As a matter of domestic law, the Administration also apparently concluded that congressional approval was not required. As the New York Times reported, “[A]dministration lawyers decided that it was within Mr. Obama’s constitutional authority to carry out a strike on Syria as well, even without permission from Congress or the Security Council, because of the ‘important national interests’ of limiting regional instability and of enforcing the norm against using chemical weapons ….” The White House Counsel stated that

[t]he President believed that it was important to enhance the legitimacy of any action that would be taken by the executive . . . to seek Congressional approval of that action and have it be seen, again as a matter of legitimacy both domestically and internationally, that there was a unified American response to the horrendous violation of the international norm against chemical weapons use.

In 2013, both the United Kingdom and Denmark expressed the view under international law that humanitarian intervention could be a lawful option in Syria. Although President Obama may not now favor the policy of greater intervention, he has clearly stated that he believes that policy option is available to him. His December 2009 Nobel Prize Lecture famously stated, “I believe that force can be justified on humanitarian grounds, as it was in the Balkans, or in other places that have been scarred by war.” So at present, it seems fair to say that in this administration, at least President Obama, Secretary of State Kerry, and US Ambassador to the United Nations Samantha Power believe that force may be used for humanitarian purposes under international law.

The Justice Department’s test for initiation of force — set forth in Walter Dellinger’s 1994 OLC Memorandum regarding Haiti and presumably supported by the current Attorney General — would also in certain circumstances permit such use of force for at least a limited period of time. Given all of this, contrary to Lederman and Deeks, the administration’s current legal position would appear to accept that some form of humanitarian intervention in Syria would be lawful under both domestic and international law. The Dissent Channel cable authors were entitled to assume that it could be lawful for the administration to pursue a different policy than the one that they believed had been pursued without success for five years.

In short, the law is hardly as black and white as Lederman and Deeks suggest. Having just laid out my own view on these issues in detail elsewhere, I don’t intend now to engage in an extended blog debate. (If readers want to see the full debate, see the extensive discussion of the domestic and international legal issues and my proposed test for Responsibility to Protect (R2P) in the recent symposium on the 2015 Frankel Lecture in the Houston Law Review.) But my view — which grew out of a previous post here —applies equally to the policy debate again raised by the Syria Dissent Channel cable:

While I remain deeply cautious about intervention in Syria, I agree with Michael Ignatieff that any nominally “noninterventionist” position must acknowledge how much the world is already intervening in Syria. The idea that a noninterventionist position is legally required in Syria must be tested against the hard reality that almost everyone under the sun is already intervening in Syria. Under these circumstances, the nonintervention position for the West may not actually be a pro-peace position, but rather a pro-slaughter position in which the Western powers invoke inflexible legal rules as a reason to do nothing.

As a former human rights policymaker, I of course concede that targeted uses of force could backfire. But I still favor having the “smart power” option of diplomatic intervention backed by the lawful threat of limited military intervention, over the policy option of doing nothing, even after a deliberate large-scale attack on civilians. The argument above suggests that neither Article 2(4) [of the UN Charter] nor the [War Powers Resolution] are so black and white that they clearly forbid the President from lawfully backing his diplomacy with a threat of force in the most dire humanitarian crises. As cease-fire discussions proceed, diplomatic intervention backed by a credible threat of force seems far more likely to bring peace in Syria than a do-nothing, nominally “pro-peace” noninterventionist position in Syria that effectively licenses continued civilian slaughter and refugee crises.

With respect to humanitarian intervention, the question raised under both domestic and international law is whether ambiguous legal rules should be interpreted to dictate a systemic bias for inaction at a time when far more assertive preventive action may be indicated. … Surely we must proceed cautiously to ensure that the road to hell is not paved with good intentions. But is the solution never to explore that pathway, or to proceed down that road carefully in hopes that if we do so wisely, we might be able to make things better in the long run? Plainly, intervention does not always (or even often) make things better. But neither does a blanket posture of “nonintervention even in the face of the grossest abuse” always lead to the optimal long-term outcome.

These delicate situations demand a thoughtful examination of all of our lawful policy options. I agree … that “[w]e must not allow short-term challenges, even as compelling as humanitarian crises and terrorism, to blind us to the long-term costs of undermining rule-of-law values.” But neither should we pretend that the domestic and international law rules that govern this situation are so determinate that “rule-of-law values” ban the very policy options that may be necessary to spur the preventive diplomacy that might save lives ….